Looking at Constitutional Reform in Sri Lanka

The Diplomat’s Taylor Dibbert speaks with Sri Lankan civil society leader Jehan Perera about constitutional reform. Perera is the Executive Director of the National Peace Council, a nongovernmental organization based in Colombo.

The Diplomat: How have negotiations pertaining to a new constitution been going?

Jehan Perera: There was a three day parliamentary debate last month on a report on constitutional reform by a select committee of parliament which was extended by a further two days–reflecting the interest of parliamentarians in the subject. On the positive side, there was a broad consensus among all the parties that the matters that were being debated were important to the country, and needed to be discussed at length. The general thinking in the country is that the coalition of the two biggest parties in the government [the United National Party and the Sri Lanka Freedom Party] provides the best opportunity to address the unresolved problems of the past, particularly the ethnic conflict. There is agreement that this is the time to address problems that cannot be neglected any longer. However, there was no consensus on the positions taken by the different political parties on the substance of the options for constitutional reform during the debate. The steering committee report itself did not present final conclusions but a series of options. The challenge will be to bridge the gaps on some key issues. One is the future of the executive presidency. The other is the issue of devolution of power. At present the negotiation process is at a standstill as all the parties are focusing their attention on forthcoming local government elections, which will be a test of their popularity.

Federalism is subject to many interpretations. It is unlikely that the term itself will be used to describe the arrangements for power-sharing in the constitution. The term “federalism” carries too much negative baggage with the Sinhalese majority who have had it dinned into them that it is tantamount to division of the country. This has been the case for the past sixty years since this demand of the Tamils first emerged and it still continues. One of the key messages of the opposition is that constitutional reform is for the purpose of dividing the country. The report of the steering committee of parliament itself notes that the federal term is too controversial and proposes an alternative formulation. However, an improvement in the present system of devolution of power is both possible and necessary.

What about the possibility of abolishing the executive presidency? Or maintaining the preeminence of Buddhism?

The issue of the executive presidency is an ongoing subject of negotiation within the government coalition itself. The main argument against it is that it is too powerful an institution, and has been abused in the past. However, the present president actively promoted the passing of the 19th Amendment [to the constitution] that substantially reduced presidential powers. There is concern amongst the Sinhalese majority that unless the country has a single center of power, the devolution of power will lead to divisive tendencies that the system will be unable to check. The ethnic minorities too seem to prefer the continuation of the executive presidency as they see in it as a central institution that they can impact on directly through their vote. I feel the executive presidency will remain though with a further reduction of powers.

The foremost place given to Buddhism in the constitution is also likely to remain. It is too emotive an issue amongst the Buddhist majority who account for 70 percent of the population who see it in terms of the historical identity of the country. Many amongst minority religionists would also not want to upset the Buddhists on this and thereby jeopardize the viability of constitutional reform in general, in which their priority concerns can be met. The strengthening of the equality clause in the constitution coupled with a non-discrimination provision is a possibility.

With the Steering Committee’s interim report out, what are the next steps? When might a referendum happen?

At the present time all attention is being focused on the forthcoming local government elections. These are expected to be held in late January or shortly after that. A victory for the government parties will encourage a speed up of the process of negotiating a joint position on constitutional reform within the government coalition. A government victory will give it the confidence it can prevail at a referendum which will be called sooner rather than later.

If the constitutional reform process were to break down, what might be the electoral implications?

Both public opinion polls and prevalent public opinion on the street shows that most of the population believe constitutional reform is important, not least because the present constitution is defective and needs to be changed in a comprehensive manner. From the time that the present constitution’s executive presidential system was first subject to abuse, academic and civil society opinion formers have critiqued the constitution and called for its replacement. Therefore, the popular movement to change the present constitution has a much longer history than the government’s present bid to formulate a new constitution. A breakdown of the constitutional reform process will be a political defeat for the government. It will also be a big blow to the Tamil parties, and voters, whose support was decisive in bringing the government to power. It is constitutional change that will ensure that they are not dependent on the goodwill of government politicians and their temporary policies, but have guarantees that come from more permanent law.